While providing his opinion regarding the incumbent president’s third term, Australian constitutional expert Prof. Suri Ratnapala observed that any person who has been elected twice to the office of the President of Sri Lanka before the enactment of the Eighteenth Amendment to the Constitution is disqualified from being nominated and being elected for a further term of office as President.
Prof. Suri Ratnapala a Professor of Public Law at the University of Queensland had made his opinion on the request of Sri Lanka Bar Association president Upul Jayasuriya- explaining whether President Mahinda Rajapakse is disqualified by law from seeking election for a third term as the President of the Democratic Socialist Republic of Sri Lanka.
The professor maintained that the Eighteenth Amendment has not sought to remove retrospectively the disqualification of President Rajapakse from being elected to a further term of office as President
“The Eighteenth Amendment has not, by express words, sought to remove retrospectively the disqualification of His Excellency President Rajapakse from being elected to a further term of office as President. The disqualification remains effective,” he stated.
He stated that the incumbent President’s disqualification during the period between the date of his second election and the date of enactment of the Eighteenth Amendment is clearly something ‘suffered under the repealed written law’ within the meaning of section 6(3)(a) of the Interpretation Ordinance.
“The provisions of the Interpretation Ordinance, by virtue of Article 168(1) of the Constitution, remain valid law until altered by Act of Parliament. The provisions of s 6(3) have not been so altered and therefore continue in force. Common law rules and principles though deserving the highest respect, cannot prevail over the express provisions of s 6(3). Nevertheless, it is my opinion that the interpretation of the effect of the Eighteenth Amendment herein offered is consistent with common law rules and principles relating to the interpretation of statutes,” he maintained.
“It is a fundamental rule of English law that no statute shall be construed as to have a retrospective operation, unless its language is such as plainly to require such a construction. And the same rule involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary,” he further stated.
The report submitted to BASL by Prof. Suri Ratnapala further stated,
"On the contrary, an interpretation of the Eighteenth Amendment that has the effect of removing the disqualification of a twice elected President will defeat the public interest by negating an important condition under which the 2010 Presidential Election was held and the incumbent was elected to office for a second term. The Eighteenth Amendment could not have been enacted without the approval of the people at a referendum if it had the effect of retrospectively extinguishing a condition on which the 2010 Presidential Election was held.
The Supreme Court Bench consisting of Her Ladyship Dr. S. A. Bandaranayake and Their Lordships K. Sripavan, P. A .Ratnayake, S. I. Imam and R. K. S. Suresh Chandra held that the Bill could be enacted without the approval of the people at a referendum. The Court did not consider the possibility of the retrospective operation of the Amendment as that question was not raised in argument. Hence, the presumption of constitutionality that requires the Eighteenth Amendment to be given prospective effect is unaffected by judgment of the Supreme Court. The Court’s judgment is fully consistent with the position that the Eighteenth Amendment does not extinguish the disqualification of the incumbent President that was incurred before the Amendment was enacted."
